Bueno Alimentos, S.A. de C.V.

Trademark Trial and Appeal Board

Jul 26, 2012

No. 76676618 (T.T.A.B. Jul. 26, 2012)

Mailed:
July 26, 2012

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Bueno Alimentos, S.A. de C.V.
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Serial No. 76676618
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REQUEST FOR RECONSIDERATION
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Theodore A. Breiner of Breiner & Breiner, L.L.C. for Bueno
Alimentos, S.A. de C.V.

S. Michael Gaafar, Trademark Examining Attorney, Law Office
116 (Michael W. Baird, Managing Attorney).
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Before Kuhlke, Bergsman and Wellington,
Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

Bueno Alimentos, S.A. de C.V. (“applicant”) filed an
intent-to-use application for the mark COCO LOCO, in
standard character form, for “fruit juices,” in Class 32.
Applicant provided an English translation for “Coco Loco”
as “The Crazy Coconut.”
The examining attorney refused registration under
Section 2(d) of the Trademark Act of 1946, 15 U.S.C.
§ 1052(d), on the ground that applicant’s mark, when used
in connection with the fruit juices, so resembles the
THIS OPINION IS NOT A
PRECEDENT OF THE T.T.A.B.
Serial No. 76676618
2
registered mark THE CRAZY COFFEE COMPANY COCO LOCO ESRESSO
and design, shown below, for “coffee; tea,” in Class 30, as
to be likely to cause confusion.1

The registration includes the following translation
statement: “The foreign wording in the mark [COCO LOCO
ESPRESSO] translates into English as ‘CRAZY COFFEE.’”
Also, registrant disclaimed the exclusive right to use
“Coffee,” “Coco,” and “Espresso.”
In a decision dated May 29, 2012, the Board affirmed
the refusal to register. On June 29, 2012, applicant filed
a request for reconsideration. As grounds for
reconsideration, applicant argues the following:
1. The Board improperly dissected the mark in the
cited registration and did not consider the cited
registration in its entirety; and
2. The Board found that registrant’s mark contained
two dominant elements, “a ground not relied upon by the
Trademark Attorney in refusing registration, and applicant,
therefore, has not been accorded due process because

1 Registration No. 3589548, issued March 17, 2009.
Serial No. 76676618
3
applicant has never been able to address and respond to
this basis for alleged likelihood of confusion.”2
The general premise of a request for consideration is
that based on the evidence and the prevailing authorities,
the Board erred in reaching the decision on the merits.
The request for reconsideration may not be used to
introduce additional evidence or to merely reargue points
that have been previously made. The request for
reconsideration should be limited to a demonstration of an
error that the Board made in interpreting the law or the
facts. TBMP §§ 543 and 1219.01 (3rd ed. rev. 1 2012).
Applicant’s contention that the Board improperly
dissected the mark in the cited registration and did not
consider the cited registration in its entirety is a
reargument of its case. On pages 13 and 14 of its appeal
brief, applicant argued that the cited registration must be
considered in its entirety, that the prominent portion of
the cited registration is the term “The Crazy Coffee
Company,” and that the wording “Coco Loco” in the cited
registration is not the prominent portion of the mark. In
its reply brief, applicant reiterated those arguments, also
noting that the Examining Attorney mischaracterized the
cited registration by referring to it as COCO LOCO ESPRESSO

2 Request for reconsideration, p. 2.
Serial No. 76676618
4
and design (pages 4 and 5) and that the cited registration
is THE CRAZY COFFEE COMPANY COCO LOCO ESPRESSO and design
(pages 5 and 6). Accordingly, applicant improperly
reargued its case through a request for reconsideration.
In any event, in our May 29, 2012 decision, the Board
specifically considered the registered mark in its
entirety. In that decision, the Board made the following
finding of fact:
In this case, we find that registrant’s
mark is comprised of two such memorable
and distinctive elements: the term THE
CRAZY COFFEE COMPANY and the COCO LOCO
ESPRESSO logo.

When consumers encounter the memorable
and distinctive COCO LOCO marks at
issue in this appeal, consumers are
likely to believe that the products and
services emanate from the same source
because they will mistakenly believe
that COCO LOCO ESPRESSO is the coffee
product line of the COCO LOCO brand of
products.

May 29, 2012 Decision, pp. 12-13. Thus, the Board
considered the mark in the cited registration in its
entirety and did not improperly dissect it.
Applicant’s argument that it was denied due process
because the Board determined that the mark in the cited
registration contained two dominant elements, “a ground not
relied upon by the Trademark Attorney in refusing
registration,” is equally unavailing. First, the ground
Serial No. 76676618
5
for the refusal to register was likelihood of confusion
pursuant to Section 2(d) of the Trademark Act of 1946, 15
U.S.C. § 1052(d). The finding of fact that the registered
mark has two dominant features is not a ground for refusal.
Second, the Board’s determination of likelihood of
confusion under Section 2(d) is based on an analysis of all
of the probative facts in evidence that are relevant to the
factors bearing on the likelihood of confusion. In re E.
I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563,
567 (CCPA 1973) (“In testing for likelihood of confusion
under Sec. 2(d), therefore, the following [13 factors],
when of record, must be considered.”). Thus, the argument
of counsel is a guide that may, or may not, be useful in
analyzing the facts that have been made of record. That
the Board analyzed and interpreted the facts differently
than either applicant or the Examining Attorney is not a
new fact to which applicant was denied an opportunity to
address. Therefore, applicant was not denied due process.
Finally, applicant requests that “the Board remand the
application to the Trademark Attorney to allow the
applicant due process to address the new basis for finding
a likelihood of confusion.”3 As indicated above, applicant

3 Request for reconsideration, p. 5.

Serial No. 76676618
6
has not been denied due process. In addition, the Board
may only reopen prosecution to enter a disclaimer.
Trademark Rule 2.142(g), 37 CFR § 2.142(g).
In view of the foregoing, applicant’s request for
reconsideration is denied.